RascalRiley wrote:
Oh, you mean senators from 26 states that are participating?
What Is the Supreme Court Permitted to Do?
The Supreme Court is not permitted to pass legislation. That is the sole prerogative of the legislative branch. The Supreme Court is the highest part of the judicial branch of government. It is merely permitted to interpret the laws already in existence.
How then can it ‘legalize gay marriage?’ It can only do this by interpreting an existing law. For this reason, the decision rests on the method of interpreting law, especially the Constitution, by each of the nine judges on the Court.
The Supreme Court Legalizes Gay “Marriage”
Justice Kennedy presented the majority opinion of the court as follows: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” He then argues that the petitioners for same-sex marriage have been previously denied this liberty. He makes these claims on the basis of the Fourteenth Amendment, which guarantees that any citizen’s rights to life, liberty, and property will not be taken away without due process, as well as “equal protection of the laws.”
This amendment was ratified in 1868 and its primary concern is clearly not the free expression of personal identity but rather the citizenship of “all persons born or naturalized in the United States.” This phrase is the very first in the amendment and is clearly meant to include emancipated s***es as citizens and to ensure their consequent rights as such. Nevertheless, Justice Kennedy interprets this to mean that the states cannot pass laws to limit the liberty of citizens’ self-expression.
Justice Kennedy then makes the claim that “The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time.” He then describes how marriage was once used as a tool for social and financial benefit, but as the nature of women’s role in society changed, marriage became fundamentally changed and, as he claims, “strengthened, not weakened.” He does not give a definition of marriage here but takes the position that all institutions must evolve to bring about maximum liberty and prosperity and that this develops as our understanding of liberty changes (meaning, for him, an unbounded increase in the direction of perfect license.)
Justice Kennedy, having set the background favorably for himself, argues that the Bill of Rights in tandem with the Fourteenth Amendment protect the liberty to same-sex “marriage,” even though that was not the intended scope of such legislation. He claims that the nature of liberty is such that it must be discovered over time and that the men who framed the Constitution left it up to future generations to fill in the gaps in the liberties guaranteed in their work. His argument is rife with terms and ideas that have no definite meaning and boil down to vague and unprecedented ideas which he believes accomplish his purpose but merely leave even the careful reader confused. Justice Scalia’s dissenting opinion makes this quite clear.
Throughout our nation’s history, liberty has been the freedom from restraint. This is the liberty that is spoken of in the 14th Amendment, but Justice Kennedy and the majority of the court push it one step further. They use the notion of the development of liberty to turn the protection of liberty into a “font of substantive rights” as Justice Thomas says. This is a blatant misreading of the Constitution because “in the American legal tradition, liberty has long been understood as individual freedom from government action, not as a right to a particular governmental entitlement.”
The petitioners were not looking for freedom from geographic restraint, incarceration, or any other prohibitions. Instead, they were looking for the same government entitlements as those given to a different group of people that the government separately deemed worthy of such entitlements. This could only be rightly given if the government decided that same-sex couples provided the same constructive benefit to society as the traditional family does. But this is not how this change was affected. Rather, the issue became one of quibbling over ‘rights’ which were never acknowledged in law and over the definition of marriage.
The petitioners attempted to circumvent the democratic process by redefining the law through the judiciary. The worst part of this is that they succeeded.